Texas is looking to become the third state in the last year to abolish civil asset forfeiture, and replace it with criminal asset forfeiture. State Senator Konni Burton filed a bill last month which requires a felony conviction before law enforcement can gobble up someone’s property. It’s a major step in Texas’ fight for justice reform which has saved the state $3B (while crime rates are at record lows).
Civil asset forfeiture is a bit of a sticky wicket at times, because there are “tough on crime” groups fighting hard against it. The Federalist Society published a pro-asset forfeiture piece by then-federal prosecutor Stefan Cassella in 1997. Cassella called asset forfeiture very important because “federal law enforcement can employ [it] against all manner of criminal and criminals organizations.”
Forfeiture is also used to abate nuisances and to take the instrumentalities of crime out of circulation. For example, if drug dealers are using a “crack house” to sell drugs to children as they pass by on the way to school, the building is a danger to the health and safety of the neighborhood. Under the forfeiture laws, we can shut it down. If a boat or truck is being used to smuggle illegal aliens across the border, we can forfeit the vessel or vehicle to prevent its use time and again for the same purpose. The same is true for an airplane used to fly cocaine from Peru into Southern California, or a printing press used to mint phony $100 bills.
The government also uses forfeiture to take the profit out of crime, and to return property to victims. No one has the right to retain the money gained from bribery, extortion, illegal gambling, or drug dealing. With the forfeiture laws, we can separate the criminal from his profits — and any property traceable to it — thus removing the incentive others may have to commit similar crimes tomorrow. And if the crime is one that has victims — like carjacking or fraud — we can use the forfeiture laws to recover the property and restore it to the owners far more effectively than the restitution statutes permit.
Sounds pretty compelling, right?
There’s just one problem…the asset forfeiture laws are being misapplied in cases where people who are not convicted of crimes, end up losing their property because prosecutors and police believe they “may have” been involved in/had knowledge of a crime. A Philadelphia family was forced out of their home because their son was arrested on drug charges, even though it didn’t appear they knew what the 22-year-old was doing. A Texas man had over 53-thousand dollars in cash donations for an orphanage and school seized after he was pulled over in Oklahoma.
The home and money were eventually returned to their rightful owners after the cases got a ton of press. But Right on Crime Deputy Director Derek Cohen points out media attention doesn’t always happen, because the numbers aren’t really sexy (emphasis mine).
A case by case analysis of all 357 of 2014 forfeitures in Dallas County revealed that over 77 percent of all cash seizures were below $5,000, and of those, 61 percent were below $2,000, hardly worth the media’s time and energy investigating and covering. Even if the media were so inclined, only two proceeded to trial.
Lack of constant coverage does not justify perpetuating a vestigial system that offers no practical benefit and opens the door to opacity and abuse.
It should also be pointed out a Texas audit found former Dallas County DA Craig Watkins misused almost $80K in asset forfeiture funds, and $90K appears to have been legal but had “significant weaknesses” in how the cash was approved and tracked. Burton’s bill would crack down on this abuse in Texas, and could be a model for the rest of the nation.
The aforementioned Derek Cohen sure feels that way, telling me he’s all for Burton’s bill.
“SB 380 restores protections to property rights that have been chipped away using a legal backwater. The bill would bring Texas’s forfeiture law in concert with the standard established by overwhelming conservative consensus and the growing chorus of states in both protecting property rights and punishing criminals.”
There’s one thing that needs to be clear: most of the reformers I know don’t have it out for law enforcement, or have an ax to grind with them. Our anger is more towards the politicians who either coerce police to enforce laws which make zero sense, or are just looking to get more money to dupe voters into re-electing them (including elected sheriffs). The officers and deputies who are on the ground protecting citizens from bad actors are, more often than not, “good cops.” Yes, they can (and do) make mistakes, and deserve criticism when it happens. But it doesn’t necessarily mean they’re the “bad guys.”
Perhaps it’s best to look at the laws on the books, and decide whether or not they should be changed, instead of painting all cops with a broad brush. Burton’s bill looks to do this, and she deserves praise for her work.